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Criminal litigation > Trial > Flashcards

Trial Flashcards

1
Q

7 reasons to raise character evidence

A

all parties agree
adduced by D or given in answer to Q asked by D in cross examination and intended to elicit it
important explanatory evidence
relevant to an important matter in issue between P and D
substantial probative value in relation to an important matter in issue between D and coD
evidence to correct a false impression given by D
D has made an attack on another person’s character

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2
Q

meaning of relevant to an important matter in issue between D and P

A
  • propensity to be untruthful (unless its not suggested Ds case is untruthful) shown by previous offence where D was untruthful or previous conviction where D pleaded NG, gave evidence and wasn’t believed.
  • propensity to commit crime of same description or category or significant factual similarities (categories are theft and sexual) (unless makes it no more likely D is guilty)
    unless too much time passed since past offence
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3
Q

when is character evidence contaminated

A

when witnesses collude to fabricate evidence

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4
Q

what happens if character evidence is contaminated

A

in CC judge can acquit or order retrial

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5
Q

procedure to rely on bad character evidence

A

serve notice of intention to use it on court and other parties and provide written record of previous convictions

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6
Q

how can D oppose the use of bad character evidence

A

apply to court for it to be excluded, send application to court and other parties

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7
Q

which bad character evidence gateways can only be used by P

A

important explanatory evidence
correct false impression given by D
D attacked anothers character

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8
Q

which bad character evidence gateway can only be used by D

A

matter in issue between D and Co-D

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9
Q

when can the court exclude bad character evidence

A

it would have such an adverse effect on fairness of procedings that it ought not to be included

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10
Q

order of trial at MC

A 
PS case: opening speech and witnesses 
poss no case to answer
Ds case and witness (d first witness)
Ps closing speech
Ds closing speech
verdict
sentencing
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11
Q

order of trial at CC

A 
poss preliminary hearing 
arraignment at PTPH
jury sworn in aka empannelled
Ps case: opening and witnesses
poss no case to answer
Ds case
Ps closing speech
Ds closing speech
Judge summing up
verdict
sentencing
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12
Q

if D gives evidence as a witness when should they be called in the order of witnesses

A

first

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13
Q

how can D change plea

A

apply in writing asap

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14
Q

what is included in judges summing up

A

law and evidence
law - burden and standard of proof, requirements of offence and other issues raised in case
evidence - facts to be determined, evidence and arguments raised, inferences from facts

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15
Q

can judge require jury to take longer than 2.10 hrs

A

yes

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16
Q

if found NG do you pay costs

A

no, if no legal aid then judge orders costs to be paid by state

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17
Q

what if jury cannot reach verdict in reasonable time

A

judge will discharge them and P will order retrial

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18
Q

examination in chief

A

cannot ask leading Qs, only open Qs

ask Qs to witness to repeat whats in witness statement - they tell their story

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19
Q

leading Q

A

suggestive of answer

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20
Q

cross examination

A

put case to witness and Ds defence or cannot rely on it later
undermine credibility
obtain favourable evidence
can use closed and leading questions

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21
Q

putting your case

A

suggest alternative version of events - must put Ds defence in cross examination or cannot rely on it in their own evidence

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22
Q

re-examination

A

party who called witness can ask more Qs re matters that arose in cross examination
only open non-leading questions

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23
Q

min age to give evidence at trial

A

any age - but under 14 give unsworn evidence
any age must be able to understand the seriousness or matter and responsibility to tell truth - assumed unless evidence to contrary

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24
Q

what ages are competent

A

all ages are competent

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25
Q

who is a compellable witness

A

any competent person

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26
Q

compellable

A

can be summoned and compelled to testify

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27
Q

impact of failing to attend or attending but refusing to answer Q

A

contempt of court

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28
Q

when is a person not competent to be a witness

A

unable to understand Qs and give answers that can be understood

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29
Q

what if person can satisfy competency test but have defective intellect

A

they can give unsworn evidence

30
Q

who decides if a person has competence to be a witness

A

judge

31
Q

are D and Co-D competent witnesses for P

A

no - some exceptions for co-D

32
Q

when can Co-D be a witness for P

A

att-gen files notice to abandon P
order made in separate trials
CoD formally acquitted
CoD pleads guilty

33
Q

can co-D give evidence for D

A

competent but not compellable

34
Q

can D give evidence in their own case

A

competent but not compellable

35
Q

can spouse of D be compelled to give evidence

A 
if spouse not coD
for P - not unless special offence 
for D- compellable 
for coD - only special offences 
if spouse is coD never compelled to give evidence
36
Q

what are special offences for spouse to be a witness

A

assult, injury, threat of injury to spouse or under 16, sexual offences, attempted or aiding/abetting where victim is under 16

37
Q

can D use special measures as a witness

A

no unless mental disorder that would impair their effectiveness as a witness

38
Q

when can a witness apply for special measures

A

fear, sexual offences, gun/knife crime, under 18, mental or physical disorder

39
Q

when does a witness automatically qualify for special measures

A

sexual offence - otherwise court decides

40
Q

what must judge warn jury when special measures are used

A

warn them that special measures have been used ut cannot suggest anything prejudicial about D giving rise to need for measures

41
Q

how to sentence

A 
determine category based on harm and culpability 
determine starting point and range based on aggravating and mitigating factors
factors to reduce sentence
guilty plea
dangerous offender
totality principle
compensation and ancilliary orders 
reasons
42
Q

guilty plea reductions

A

1/3 at MC before sent to CC
1/4 after PTPH
1/10 first day of trial
can be reduced to zero during trial

43
Q

how is second half of sentence usually served when sentence over 2 years

A

on license unless offender of particular concern

44
Q

how do offenders of particular concern seek license for second half of offence

A

don’t get it automatically but can apply for parol then may be released any time from half way point to end of sentence. then released on license

45
Q

how long does a sentence have to be to be eligible for suspension

A

14 days to 2 years

46
Q

how long can a sentence be suspended for

A

6m - 2 years

47
Q

max fine that can be imposed if suspended sentence is breached but court doesn’t give effect to custodial sentence

A

2500

48
Q

what is the operational period

A

period for which a sentence is suspended

49
Q

what is the supervision period

A

period during which conditions must be met during a suspended sentence

50
Q

how long can supervision period be

A

must end no later than operational period

51
Q

when does a suspended sentence take effect

A

conditions are broken or another offence is commited

52
Q

what must a court do when a suspended sentence is breached

A

order sentence to take effect either for original length or shorter length
if that would be unjust then add conditions or change operation period or suspension period

53
Q

what if D breaches community sentence

A

if without reasonable excuse D gets warning

54
Q

what if D breaches community sentence several times in 12 months

A

back to court: more onerous community order or resentence and can get custodial sentence even if original offence wasn’t custodial

55
Q

what if further offence committed during community sentence

A

leave community order in place or revoke if new offence requires custody or resentence

56
Q

do spouse compellability rules apply when divorced

A

no if divorced at date of trial it is like they were never married

57
Q

what sentencing powers do CC have on appeal

A

can impose any sentence that MC could have imposed

58
Q

process for appealing to HC by way of case statement

A

apply to MC within 21 days of decision
application identifies Qs of law
MC then state a case for HC which means clerk will prepare draft statement f case to set out issues
prepared with magistrate or judge who heard case then sent to P and D for amendments
final version sent to appealing party to lodge with HC
give notice to other party that it is done

59
Q

what power does CofA have is att-Gen appeals to it on basis that sentence is unduly lenient

A

CofA has power to increase sentence but it must be a sentence that CC could have passed

60
Q

when can att-gen appeal to C of A on basis that sentence is unduly lenient

A

must be indictable, specified either way or CofA gave permission

61
Q

can the prosecution appeal against an acquittal

A

no but can appeal against a ruing during the trial that effectively ended the trial or significantly weakened the prosecutions case

62
Q

when does the rule of double jeopardy not apply

A 
murder
attempted murder
manslaughter
kindnapping
sexual offences
drugs
aggravated arson
63
Q

what is the rule of double jeopardy

A

cannot try D for same offence twice

64
Q

when will CofA qush a conviction and order a retrial

A

new and comeplling evidence and interests of justice

65
Q

when can a MC decision be challenged by JR

A

makes order they had no power to make (ultra vires) or MC breaches rules of natural justice (fair hearing or bias)

66
Q

when is a conviction not unsafe despite a mistake having been made

A

guilty verdict would have still resulted

67
Q

how long do you have to appeal a conviction to C of A

A

28 days of conviction at CC not sentence

68
Q

how to appeal conviction to C of A from CC

A

D has 28 days to serve appeal notice with draft grounds of appeal
serve on registrar at criminal appeal c of a
set out grounds on which it is unsafe
on receipt of docs registrar gets transcript of evidence from trial and judges summing up
given to judge who decides if permission to appeal and public funding is granted

69
Q

effect of making an appeal that is completely without merit

A

judge may dismiss appeal and make a direction as to loss of time

70
Q

what is a direction as to loss of time

A

time in custody waiting for outcome of appeal doesn’t count to time D must serve for their sentence as it normally would

71
Q

when must C of A order retrial

A

if appeal against conviction is allowed and interests of justice require it
if court satisfied that D would have been acquitted then no retrial necessary otherwise order retrial unless unfair to D or somehow inappropriate

Criminal litigation (6 decks)

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